Can States Opt Out of Federal Law?

Can a state decide not to adopt the new healthcare law? Learn about the growing trend toward state “nullification.”

Adam Freedman
5-minute read

It Began in 1798

According to experts, the state nullification movement has its roots in the earliest days of the American republic. When John Adams was President, Congress passed the infamous Alien and Sedition Acts, a series of laws which, among other things, made it essentially illegal to criticize the government. In 1798, Virginia and Kentucky each passed resolutions asserting their power to “nullify” federal legislation.   And these resolutions were not the product of fringe lunatics--they were backed by James Madison and Thomas Jefferson.

Other Nullification Examples

Jefferson and Madison may have come to regret their impetuousness. Some years later, when Jefferson was President, a number of New England states asserted their right to “nullify” federal law, specifically a federal embargo on all foreign trade imposed by Jefferson as an attempt to punish France and England. And a few years after that, when Madison was President, Connecticut invoked its right to nullify federal law when it refused to call up its militia to fight in the War of 1812. 

Nullification arose again in 1828 and 1832, when South Carolina passed nullification resolutions to resist certain tariff laws. In the 1850s a number of northern states refused to comply with the Fugitive Slave Act, a law that put all runaway slaves under federal jurisdiction, where they were denied jury trials and other aspects of due process.

Is Nullification “Legal?”

What is the legal effect of nullification? It’s a little hard to say. Certainly, the Supreme Court would say that state nullification laws have no effect whatsoever because only the Supreme Court can strike down a federal law. But the supporters of nullification argue that the States can trump the Supreme Court. I don’t have the ultimate answer but it’s worth noting that James Madison didn’t think that the nullification resolutions he helped to write were actually binding.   He called the resolutions “expressions of opinion,” whose intent was to bring about results by swaying public opinion.

By that measure, nullification can be a powerful tool.   Remember the REAL ID Act? It was supposed to go into effect in 2008. But the resistance from the states has led to several delays in its implementation.   President Obama--who opposed REAL ID during the campaign--does not appear to be moving very aggressively on implementation of the law; and it’s likely that he takes some comfort in the fact that so many states oppose the measure. But, as we saw with Jefferson and Madison, two can play at the nullification game, and the President is probably none too pleased at the nullification resolutions directed at his healthcare reform. 

And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer.  In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.

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About the Author

Adam Freedman

Adam Freedman is a lawyer and a regular contributor to Point of Law and Ricochet. Freedman’s legal commentary has been featured in The New York Times, the Minneapolis Star-Tribune, and on Public Radio. He holds degrees from Yale, Oxford, and the University of Chicago. He is the author of The Naked Constitution (2012).